Marked to market net gains

# (a)

If the taxpayer or designated agent, in the case of a combined group, has made the fixed percentage method election in the manner required by subdivision (c) of section 4-2.4 of this Subpart, then 8% of marked to market net gains (not less than zero) from each type of qualified financial instrument is included in New York receipts and 100% of such marked to market net gains are included in everywhere receipts.

# (b)

If the taxpayer or designated agent, in the case of a combined group, has not made the fixed percentage method election, then the amount of marked to market net gains from qualified financial instruments included in New York receipts and everywhere receipts is determined using the rules set forth in paragraphs (1),
(2) and (3) of this subdivision. The amount of marked to market net gains (not less than zero) from instruments that are not qualified financial instruments included in New York receipts or everywhere receipts is also determined using the rules set forth in paragraphs (1), (2) and (3) of this subdivision.

# (1)

Marked to market net gains (not less than zero) from stocks are not included in New York receipts or everywhere receipts, unless the commissioner has required the corporation’s net gains from sales of stocks be included in the apportionment factor. Marked to market net gains (not less than zero) from partnership interests are not included in New York receipts or everywhere receipts, unless the commissioner has required that the corporation’s net gains from the sale of partnership interests be included in the apportionment factor.

# (2)

The amount of marked to market net gains (not less than zero) from each type of financial instrument included in New York receipts is determined by multiplying the marked to market net gains (not less than zero) from each such type of financial instrument by a fraction, the numerator of which is the net gains from actual sales of that type of financial instrument included in New York receipts determined under the applicable clause of section 210-A(5)(a)(2) and regulations in this Subchapter and the denominator of which is the net gains from actual sales of that type of financial instrument included in everywhere receipts determined under the applicable clause of section 210-A(5)(a)(2) and the regulations in this Subchapter. Marked to market net gains (not less than zero) from the financial instruments subject to the rules in this paragraph are included in everywhere receipts.

# (3)

If there are no actual sales of a type of financial instrument that is marked to market or if the corporation has an overall net loss from the actual sale of that type of financial instrument, the amount of

that type of financial instrument by a fraction, the numerator of which is the sum of the amount of receipts included in New York receipts under clauses (A) - (I) of section 210-A(5)(a)(2) and subclause (ii) of section 210-A(5)(a)(2)(J), and the denominator of which is the sum of the amount of receipts included in the everywhere receipts under clauses (A) - (I) of section 210-A(5)(a)(2) and subclause (ii) of section 210-A(5)(a)(2)(J). 100% of marked to market net gains (not less than zero) for which the amount to be included in New York receipts is determined under this paragraph are included in everywhere receipts.